Also known as: motions to modify · motion for modification
Written by attorneys — see sources below.
A post-final-decree request that a court alter the terms of an earlier order. In family law the request succeeds only upon a showing of changed circumstances so substantial and continuing as to render the original terms unconscionable for maintenance or support, or upon affidavits establishing serious endangerment for custody modifications filed before the two-year bar expires.
Miguel Mendoza lost his factory job and his income dropped by half. He filed a motion to modify the maintenance award in the divorce decree that had been entered eight months earlier. The court examined whether the reduction constituted a substantial and continuing change that rendered the original terms unconscionable and limited any adjustment to installments accruing after the motion was filed.
Mina Mehta filed a motion to modify custody fourteen months after the decree awarded primary physical custody to her ex-husband. Her affidavits alleged that the child was regularly left alone overnight during the father's swing shifts. The court reviewed the affidavits to determine whether they supplied reason to believe the child's present environment seriously endangered his physical and emotional health, thereby permitting the motion before the two-year period expired.
Monica Morgan sought to modify an injunction that had barred a school district from using certain teaching methods. She presented new Supreme Court precedent and updated factual circumstances showing that the original order no longer served its intended purpose. The court considered whether the intervening change in law and facts justified altering the decree.
In 1965, Congress enacted Title I of the Elementary and Secondary Education Act to provide remedial education services to disadvantaged children. The Board of Education of the City of New York first applied for Title I funds in 1966 and initially arranged to transport eligible private school students to public schools for after-school instruction. When that approach proved unsuccessful due to poor attendance and safety concerns, the Board implemented an on-site program in 1978 that sent public school teachers into parochial schools during regular school hours. In 1978, respondents, who are parents of parochial school children and federal taxpayers, sued the Board in the District Court for the Eastern District of New York challenging the on-site program as violating the Establishment Clause. The District Court enjoined the on-site services in 1981, and the Court of Appeals for the Second Circuit affirmed the following year. While the appeal was pending, the Board developed an off-premises program that required transporting students to neutral sites at an estimated additional cost of $6 million per year. In 1983, the parties entered into a consent decree requiring the Board to provide Title I services off the premises of sectarian schools and to establish a monitoring system. Following the Supreme Court's 1985 decision in Aguilar v. Felton, which invalidated a similar program, the parties entered a second consent decree that required the Board to pay for the additional costs of the off-premises program. The Board complied with both decrees, spending over $100 million on computer-aided instruction, leased sites, and transportation between the 1986-1987 and 1993-1994 school years. In 1995, the Board and a group of parents of parochial school students moved in the District Court for relief from the consent decrees under Federal Rule of Civil Procedure 60(b)(5), citing subsequent decisions including Zobrest v. Catalina Foothills School District and Witters v. Washington Department of Services for the Blind. The District Court denied the motion, concluding that Aguilar remained good law and that no significant change in factual conditions had been shown. The Court of Appeals affirmed, and the Supreme Court granted certiorari in 1997.
View caseMelissa Mills moved to modify the child support order after her ex-husband's income increased substantially. She submitted evidence that the original percentage-based award no longer reflected the parties' current financial circumstances. The court evaluated whether the change warranted an adjustment to future payments.
Sharon Brown and Sheldon Brown married in 1984 and had one child, who is still a minor. They were divorced in 1987, and Sheldon was required to pay 17% of his gross income for child support pursuant to the general percentage standards in § HSS 80. Sheldon remarried and has three minor children from his second marriage. His second marriage is still intact. Sheldon brought a motion under sec. 767.32, Stats., to modify his child support due to the fact that he has minor children in his second family. He requested that the court utilize § HSS 80.04(1), the "serial family payer" provisions of the percentage standards in resetting his child support obligation for his first child. The family court commissioner determined that the "serial family payer" provisions did not apply and refused to modify the existing support order. Sheldon appealed to the circuit court, which ruled that the "serial family payer" provisions applied to Sheldon. It therefore reduced his child support obligation from 17% to 12.1%. Sharon appeals that order.
View caseMatthew Martinez filed a motion to modify the conditions of his supervised release after new information emerged about his employment prospects. He argued that the original restrictions prevented him from obtaining stable work. The court assessed whether the changed circumstances justified relaxing the prior order.
In March 1992, Timothy Hall was found dead in Newport News, Virginia, with his throat cut and evidence of sodomy. Police arrested Walter Mickens days later on murder charges. The same juvenile court judge who had appointed Bryan Saunders to represent Hall on unrelated assault and battery charges appointed Saunders to represent Mickens on April 6, 1992. Saunders had met with Hall for fifteen to thirty minutes the week before the murder, and the judge did not inquire into any potential conflict from the prior representation. Mickens's trial occurred in 1993. The Commonwealth presented overwhelming evidence of guilt, the jury convicted Mickens of capital murder, and it sentenced him to death. The Virginia Supreme Court affirmed the conviction and sentence in 1994. In June 1998, Mickens filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. Federal habeas counsel discovered Saunders's prior representation of Hall when a clerk mistakenly produced the confidential juvenile file. Mickens alleged that Saunders's conflict of interest violated his Sixth Amendment right to effective assistance of counsel. After an evidentiary hearing, the District Court denied the petition, concluding that Mickens had not shown the conflict adversely affected Saunders's representation. A panel of the Fourth Circuit affirmed the District Court's denial. The en banc Fourth Circuit reversed, holding that the trial judge's failure to inquire into the potential conflict required automatic reversal. The Supreme Court granted certiorari.
View caseMiranda Morales moved to modify a final support ruling after additional evidence came to light that altered the parties' financial circumstances. She contended that the new facts required the court to revisit its earlier order. The court determined whether the intervening developments justified changing the support obligation.
Petitioners Alderman and Alderisio, along with Ruby Kolod (now deceased), were convicted in federal court of conspiring to transmit murderous threats in interstate commerce under 18 U.S.C. §§ 371 and 875(c). Their convictions were affirmed by the Tenth Circuit in 1967, and the Supreme Court initially denied certiorari. After denial, the petitioners alleged in a rehearing petition that Alderisio's Chicago business premises had been subjected to government electronic surveillance. The government responded by acknowledging that Alderisio's conversations had been overheard through unlawful eavesdropping. Petitioners Ivanov and Butenko were convicted in separate proceedings of conspiring to transmit national defense information to the Soviet Union under 18 U.S.C. §§ 794(a) and (c) and related charges under 18 U.S.C. § 951. The Third Circuit affirmed most convictions. Following the Alderman rehearing developments, certiorari was granted in Ivanov and Butenko on parallel questions concerning surveillance. After the convictions were affirmed and while the cases were pending, it was revealed that the United States had engaged in electronic surveillance that might have violated Fourth Amendment rights and tainted the convictions. The Supreme Court vacated the judgments and remanded each case to the District Court for adjudication of whether any government evidence supporting the convictions was the product of illegal surveillance. The government moved for modification of the remand order, proposing that surveillance records first undergo in camera inspection by the trial judge, who would disclose to petitioners and counsel only those materials found arguably relevant to the prosecution. Petitioners opposed the in camera procedure and sought full disclosure of all surveillance records to which they claimed standing. The government maintained that none of the overheard conversations were arguably relevant to the prosecutions and that disclosure of irrelevant conversations would endanger third parties or national security. The Supreme Court restored the cases for reargument specifically on the disclosure issue and the question of standing to object to the fruits of illegal surveillance.
View caseA party may file earlier only if affidavits establish reason to believe the child's present environment may seriously endanger physical, mental, moral, or emotional health. The court screens the affidavits before allowing the motion to proceed to a full hearing on the merits.
Supporting sources
The moving party must demonstrate changed circumstances so substantial and continuing as to make the original terms unconscionable. Modification applies only to installments accruing after the motion is filed.
Supporting sources
The court must deny the motion unless the affidavits credibly allege serious endangerment. Mere assertions of better parenting or changed preferences do not satisfy the threshold.
Supporting sources
…practice, the sole question legitimately presented on appeal of the District Court's decision denying petitioners' Rule 60(b)(5) motion to modify the Aguilar injunction would be: Did the District Court abuse its discretion when it concluded that neither the facts nor the law had so changed as to warrant alteration of the…